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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2017/00634

In the matter between:

THENJIWE CARROL TEKANA                                                                              Applicant

And

FIRSTRAND BANK LIMITED T/A WESBANK                                                   Respondent

 

J U D G M E N T

 

LAMONT, J:

[1] The respondent as plaintiff instituted action against the applicant as defendant claiming:-

1.1 cancellation of a credit agreement,

1.2 return to the plaintiff of a 2015 Land Rover, which was identified, failing which an order that the sheriff be authorized to attach the vehicle and hence same to the plaintiff,

1.3 costs of suit.

[2] Judgment by default was granted on 29^th of March 2017 directing that the credit agreement was cancelled and that the applicant return the vehicle to the respondent failing which the sheriff was authorized to attach it and deliver it to respondent.

[3] In due course the vehicle was delivered to the respondent. During May 2017 the applicant paid the arrears outstanding and tendered to pay the costs. The applicant notified the respondent that by reason of her having paid the arrears and tendered to pay the costs she was entitled to delivery of the vehicle. The respondent refused to comply with her demand on the basis that as the contract had been cancelled she was not entitled to a reinstatement of the credit agreement and hence was not entitled to return of the vehicle.

[4] The applicant was dissatisfied with the respondent’s attitude and instituted proceedings as a matter of urgency under case number 21075/2017 claiming inter alia delivery of the vehicle. That application was heard in due course and struck from the roll on the basis it was not urgent.

[5] The applicant also brought an application for the rescission of judgment granted by default under case number 634/2017. In that application the applicant sought rescission of the default judgment granted on 29^th of March 2017, an order that the credit agreement be reinstated, return of the vehicle, stay of the sale in execution of the vehicle and costs if the application was opposed. That application was heard in due course together with the application brought under case number 21075/2017 and struck from the roll on the basis it was not urgent.

[6] The applicant was dissatisfied with what had happened and sought a special allocation on a preferential basis for both matters. No allocation was made. The applicant thereafter applied to the registrar in terms of rule 7(5) of the Transvaal Rules for a trial date in case number 634/2017. The registrar allocated the date of hearing of a trial as 8^th May 2017 for case number 21075/2017. The applicant submitted from the bar that the registrar in fact corrected the date and directed that the date of hearing be 8^th May 2018.

[7] It is apparent from the document served by the applicant on the registrar that the applicant sought a trial date in the action in which judgment had been granted (634/2017) on 2^nd of August 2017. The applicant although she had applied for a trial date of an action in which judgment had been granted took no steps to set down either of the two applications and in due course the respondent set them down for hearing. It obtained a date and advised the applicant of that date on 2 November 2017 by way of serving a notice of set down on the applicant’s correspondent attorneys. On the date of hearing, 15 February 2018 there being no appearance on behalf of the applicant the court made the following order in case number 634/2017.

“1 The application is dismissed with costs including costs which were previously reserved in the urgent application.

2 The second application is dismissed with costs”

[8] The order made on 15 February 2018 accordingly dismissed the application for rescission sought in case number 634/2017 and also dismissed the application seeking delivery of the vehicle and the other relief claimed in case number 21075/2017.

[9] The applicant became aware of the judgment and orders made. She brought an application for rescission of it and for various other relief. The notice of motion reads as follows:

1 Rescinding the Order granted by this Honourable Court against the applicant on 15 February 2018 under the above case number [a reference to case number 634/2017] and leave be granted to the applicant to defend the respondents Summons in the main action.

2 That the credit agreement of the applicant be reinstated.

3 Return to the applicant of… motor vehicle…

4 That the second respondent be ordered to stay the sale in execution

5 Cost only if this Application is opposed.

[10] There is no application before me seeking rescission of the order made in case number 21075/2017. I will assume in favour of the applicant that the intention of the applicant in prayer 1 is to seek to set aside all the relief granted by the court on 15 February 2018 and that what is sought is a rescission of the order dismissing the application for rescission of the default judgment as well as the order dismissing the application brought for delivery of the subject matter of the credit agreement namely the motor vehicle.

[11] The applicant’s explanation of why the default of appearance on 15 February 2018 when the applications were heard was not wilful is dependent upon an acceptance of the explanation of the personnel dealing with the matter at the offices of the attorney’s correspondent. Two people dealt with the matter at those offices. The evidence of the first person is that prior to the delivery of the notice of set down he handed the file to the second person. The evidence of the second person is limited to a confirmation of the affidavit of the evidence of the first person. The first person’s evidence on the issue concerning the notice of set down is the following:-

“Neither I nor Ndalamo were aware that there was a notice of set down served on us on 2 November 2017. The failure to notify… Was due to an oversight on our part…”

There is no explanation as to how the second person (Ndalamo) dealing with the matter failed to obtain sight of the document setting the application down.  In favour of the applicant I will assume that the default of the applicant who had no knowledge of the events is not wilful and that I should not attribute the conduct of the attorneys to him.

[12] The next issue is whether the applicant established good cause in the applications by establishing good cause to rescind the judgment by default and a case for other relief sought in the applications brought in 2015/2017.

[13] The applicant in order to establish good cause for the rescission of the default judgment is required to establish that there is a defence to the action instituted by the respondent which resulted in the default judgment being granted. The application for rescission of judgment contains no explanation as to why the applicant was in default of appearance to defend. The summons was served at the applicant’s domicilium citandi et executandi. At the time of service the sheriff ascertained that the person who was on the property a Mrs. Du Toit knew the applicant and that the applicant was temporarily absent from the property. There is no explanation why the summons did not come to the attention of the applicant. The applicant accepts that she breached the credit agreement and sets out no defence to the action. The applicant sets out a defence in that she is entitled to possession of the vehicle as she, after the judgment had been obtained paid the arrears. The fact that the applicant paid the arrears does not amount to a defence to the action and the judgment which was legitimately obtained. At best for the applicant the payment of the arrears might result in the default judgment and subsequent attachment being rendered without force or effect.[1]

[14] As the applicant has made out no case for the rescission of the judgment granted by default that portion of the relief cannot be granted.

[15] The defence which would establish the right to rescission of the order dismissing the other claim is identical in that case to what would be needed to be established to found the claim for the vehicle in prayers 2,3 and 4 of the current application.

[16] In favour of the applicant I will assume the dismissal of claims made for the vehicle do not make the claims in this application res judicata.

[17] I assume in favour of the applicant that the relief sought for the return of the motor vehicle is freestanding and that if the applicant’s allegations made out a case there could be an order that the vehicle should be returned to her.

[18] The right of the applicant to return of the vehicle is dependent upon her establishing that the National Credit Act No 34 of 2005 entitles her to the relief on payment of the arrears.

[19] The relevant section under which the applicant might be entitled to relief is to be found in section 129 (3) and section 129 (4). Those sections provide as follows:-

“129 (3) Subject to subsection (4), a consumer may at any time before the credit provider has cancelled the agreement, remedy a default in such credit agreement by paying to the credit provider all amounts that are overdue, together with the credit provider’s prescribed default administration charges and reasonable costs of enforcing the agreement up to the time the default was remedied.

(4) A credit provider may not re-instate or revive a credit agreement after,

(a) the sale of any property pursuant to an attachment order; or surrender of property in terms of section 127;

(b) the execution of any other court order enforcing that agreement; or

(c) the termination thereof in accordance with section 123”

[20] It is common cause that the applicant concluded a credit agreement contemplated by the Act; that she was in breach of the agreement; that the agreement was cancelled and there is an existing court order reflecting the cancellation; that subsequent to the order being made the applicant paid the arrears and tendered to pay the costs. The applicant’s payment of the other due amounts and to pay charges and costs was in my view sufficient to meet the requirements of the Act. (A tender and payment prior to the termination of the credit agreement was further sanctioned by clause 13.6 of the credit agreement). The consequence of such payment and the reinstatement of the credit agreement is however dependent on the agreement not having been cancelled at the time such payment and tender was made.

[21] As the payment and tender postdate the cancellation the applicant is not entitled to the reinstatement and return of the vehicle. Accordingly the applicant’s application is dismissed with costs.

[22] I make the following order:

The application is dismissed with costs.

 

 

                                ______________________________________________

                                                                            C G LAMONT

                                           JUDGE OF THE HIGH COURT OF SOUTH AFRICA

                                             GAUTENG LOCAL DIVISION, JOHANNESBURG

 

COUNSEL APPLICANT: Adv. M. Matlapeng

APPLICANT’S ATTORNEYS: Ramphele Attorneys

COUNSEL FOR THE RESPONDENT: Adv. K. Meyer

RESPONDENT’S ATTORNEYS: CF Van Coller Inc

DATE OF HEARING: 10 February 2020

DATE OF JUDGMENT: 18 February 2020

[1] Nkata v Firstrand Bank Limited and Others 2016 (4) SA 257 (CC) at paragraph 131

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